November 19, 2004

Commentary

The Quaint Mr. Gonzales

By Marjorie Cohn

Most Republicans and many Democrats have hailed Bush’s nomination of White House counsel Alberto Gonzales for attorney general as a brilliant choice. Whereas John Ashcroft ruffled feathers with his coarse warnings that opponents of Bush’s post-9/11 agenda “only aid terrorists,” the soft-spoken Gonzales is much more palatable. And he’s Hispanic to boot, so the Bush cabinet diversity quotient won’t change when Colin Powell steps aside in the second term. Some Democrats will ask tough questions during Gonzales’s confirmation hearing. But it would be unseemly for Democrats to seriously challenge the nomination of the first Latino Attorney General of the United States.

The right-wing Republicans who propelled Bush to a second term are relieved Gonzales was tapped to head the Department of Justice, and not to be a justice of the Supreme Court. Gonzales’s views on abortion are too liberal for them, but they don’t see him doing damage to their “pro-life” position as the nation’s top cop. Tom Minnery, vice president for public policy at the Colorado-based Focus on the Family, confirmed that Gonzales would be objectionable as a judicial nominee because he does not have “strong pro-life beliefs.” However, Minnery’s group would support Gonzales’s appointment as attorney general.

But the New York Times reports that Republicans close to the White House claim the nomination of Gonzales for attorney general is “part of a political strategy to bolster Mr. Gonzales’s credentials with conservatives and position him for a possible Supreme Court appointment.” One Republican said the nomination hearings on Gonzales would also “get out of the way” the debate over the legal memos Gonzales prepared and supervised as White House counsel.

Notwithstanding his mild-mannered appearance, Gonzales is the iron fist in the velvet glove. Gonzales, whom Bush affectionately calls “mi abogado” (“my lawyer”), wrote one of the most outrageous torture memos. On January 25, 2002, Gonzales advised Bush that “the war on terrorism is a new kind of war, a new paradigm [that] renders obsolete Geneva’s strict limitation on questioning of enemy prisoners and renders some of its provisions quaint.”

Oh really? The “quaint” Geneva Conventions are treaties ratified by the United States, and therefore part of the supreme law of the land under our Constitution.

Gonzales also provided Bush with novel defenses against potential war crimes prosecutions that might result from torturing prisoners captured in Afghanistan. The 1996 War Crimes Act says that grave breaches of the Geneva Conventions are war crimes. Thus, the definition of war crimes includes torture, inhuman treatment, and willful killing, as well as outrages against personal dignity. Gonzales advised Bush that he could avoid allegations of war crimes by simply declaring that Geneva doesn’t apply to the war against the Taliban and Al Qaeda in Afghanistan.

When Colin Powell saw Gonzales’s memo, he reportedly “hit the roof.” Powell wrote a counter-memo to Gonzales and Condoleezza Rice, warning of the immense damage this could do to the United States - legally, politically, militarily, diplomatically, and morally. To declare that the Geneva Conventions did not apply, Powell wrote, “will reverse over a century of U.S. policy and practice in supporting the Geneva conventions, and undermine the protection of the law of war for our troops, both in this specific conflict and in general.”

Powell was right. The Geneva Conventions contain no loopholes that would allow the torture and inhuman treatment of prisoners. Even if a captive did not qualify for prisoner-of-war status under the Third Geneva Convention, he would be protected by the Fourth Geneva Convention on the treatment of civilians during wartime. And article 3 of both conventions prohibits torture, and humiliating and degrading treatment against anyone who is no longer fighting. It is well-established that article 3 applies to international, as well as internal, conflicts.

Bush didn’t listen to Powell. On February 7, 2002, Bush declared that Geneva would not apply to Al Qaeda. He added that he had “the authority to suspend Geneva as between the United States and Afghanistan,” but declined to exercise it at that time. Geneva “will apply to our present conflict with the Taliban,” Bush said. But then, in a striking example of double-speak, he determined they were “unlawful combatants,” ineligible for hearings to decide whether they were prisoners-of-war under the Third Geneva Convention. (Under the terms of Geneva, only a “competent tribunal” can make that determination). Bush also proclaimed that article 3 of Geneva didn’t apply to either Al Qaeda or the Taliban prisoners.

After the pornographic torture photos, and memos justifying torture, leaked out last April, it was Gonzales who was charged with damage control. While being run out of town, Gonzales made it look like a parade by releasing more memos - though not all of them, then admitting to reporters that Team Bush “felt that it was harmful to this country, in terms of the notion that perhaps we may be engaging in torture.”

Another controversial memo, dated August 1, 2002, from the Justice Department’s Office of Legal Counsel to Gonzales, was one of the leaked documents. It opined that under the president’s powers as commander in chief, interrogators who torture Al Qaeda or Taliban prisoners could be exempt from torture prosecutions.

Gonzales, still trying to stem the rising tide of outrage, said the August memo and another one from the Pentagon had only been meant to “explore the limits of the legal landscape.” To his knowledge, said Gonzales, they “never made it to the hands of soldiers in the field, nor to the president.”

In his January 25, 2002 memo, Gonzales also outlined plans to use military commissions to try prisoners, in order to deny them due process protections afforded by military and civilian courts. In a significant defeat for the Bush administration, a federal district court judge in Washington D.C. ruled earlier this week that the military commissions violate the Geneva Conventions, and were unlawfully constituted because Congress had not authorized them. The military commissions have been suspended indefinitely.

Gonzales’s sordid record goes beyond his apologies for torture of prisoners. When he was counsel to Texas Governor George W. Bush from 1995 to 1997, Gonzales provided his boss with “scant summaries” on capital punishment cases that “repeatedly failed to apprise the governor of crucial issues: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence,” according to the Atlantic Monthly.

Gonzales prepared 57 such summaries, including one regarding the case of Terry Washington, a mentally retarded man executed for murdering a restaurant manager. The jury was never told about his mental condition. Gonzales’s three-page summary of the case for Bush mentioned only that Washington’s defense counsel’s 30-page plea for clemency (which covered the mental competency issue) was rejected by the Texas parole board. Bush refused to stay executions in 56 of the 57 cases in which Gonzales wrote abbreviated memos.

Moreover, Gonzales helped write the USA Patriot Act, and managed Bush’s selection of judicial nominees, most of whom had to pass a right-wing ideological litmus test.

When Gonzales was Chief Justice of the Texas Supreme Court, Dick Cheney’s Halliburton was the second-largest corporate contributor to Texas Supreme Court races. Over a seven-year period, five Halliburton cases went before that court, and it consistently ruled in favor of Halliburton. And although Gonzales lawfully accepted $14,000 from Enron, he did not recuse himself from the administration’s investigation of the Enron scandal when he was White House counsel.

From 2000 to the present, Gonzales led the Bush administration’s obstruction of Government Accountability Office access to documents from Cheney’s secret energy policy meetings.

Alberto Gonzales has been a loyal foot soldier, walking in lockstep with George W. Bush, for years. As head of the Justice Department, we cannot expect Gonzales to lead independent investigations of the widening probe of Halliburton, or the illegal leak of the identity of a CIA agent by an official of the Bush administration.

In spite of opposition to Gonzales’s nomination by public interest groups such as the Center for Constitutional Rights and Human Rights Watch, Democratic Senator Joseph Biden said “I think he’s a pretty solid guy.”

Unless the Democrats in the Senate show some backbone, and block the nomination of Alberto Gonzales with the only arrow left in their quiver - the filibuster, we will be saddled with another attorney general who mounts vicious assaults on our civil rights.

Marjorie Cohn, is a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists. Reprinted from Truthout (http://www.truthout. org/index.htm) November 13, 2004.